Employment Law Update

Preti Flaherty's employment lawyers provide news, discuss up-to-date legal issues in employment law and highlight emerging trends in the workplace. The Firm's Employment Law Group represents corporate and individual clients in a wide range of employment-related situations.

Recent Blog Posts

  • The First Circuit Court of Appeals recently affirmed summary judgment in a retaliation suit under the Maine Whistleblowers’ Protection Act (WPA), finding no merit to the employee’s claim that her termination was motivated by complaints she had made about a coworker’s workplace behavior. Before getting to the merits in Theriault v. Genesis Healthcare LLC, though, the First Circuit addressed Maine’s new framework for analyzing WPA claims and clarified that, although the framework may have changed the way evidence of... More
  • Retaliation cases often focus on the timing between an employee’s protected activity and an adverse employment action. The closer they are in time, the more likely it is that a jury could infer that the protected activity caused the adverse action (but not always). This causal link makes sense if there’s evidence that the employer actually knew about the protected activity when it took the adverse action. But what if that evidence doesn’t exist? Can the timing... More
  • A manager for a Burger King franchise in Puerto Rico who requested a fixed work schedule due to posttraumatic stress disorder (PTSD) that he developed after being attacked at gunpoint was not a “qualified individual” under the Americans with Disabilities Act (ADA), the First Circuit Court of Appeals recently held. Characterizing its opinion in Sepulveda-Vargas v. Caribbean Restaurants, LLC, as a “lesson straight out of the school of hard knocks,” the Court found that being able to work rotating shifts... More
  • The Massachusetts Office of the Attorney General has issued guidance on the amended Massachusetts Equal Pay Act (MEPA), which goes into effect on July 1, 2018. The guidance provides a succinct overview of the MEPA and contains a lengthy FAQ on the amended law’s requirements.The MEPA prohibits discrimination in pay based on gender and requires employees of different genders to be paid equally for “comparable work.” Under the amended MEPA, “comparable work” is defined as work that requires substantially similar... More
  • A parts clerk suffers a stroke. Following the stroke, the clerk returns to work without restrictions but still has difficulty moving his left side. The clerk, however, continues to receive rehab and all parties expect that his condition will improve. Based on that expectation, the clerk’s supervisors tell him that they will accommodate him as best they can as long as he can reasonably perform most of his job, which happens to include being able to lift... More
  • The Equal Employment Opportunity Commission (EEOC) has announced a new Strategic Plan for 2018 – 2022. The EEOC approved the new plan unanimously and began implementing it last month. As explained by the EEOC in its announcement, the Strategic Plan serves as a framework for the Commission to achieve its mission through “strategic application of the EEOC’s law enforcement authorities, preventing employment discrimination and promoting inclusive workplaces through education and outreach, and organizational excellence.” For each of... More
  • It has been a busy few months at the National Labor Relations Board (NLRB). Since December 2017, the NLRB has: released more than 40 advice memoranda containing guidance on a plethora of labor issues; overruled the joint employer test it adopted in 2015 in Browning-Ferris Industries, and then vacated its decision (Hy-Brand Industrial Contractors, Ltd.) due to a board member’s conflict of interest; and issued decisions in three other cases that significantly alter the standards applied to micro-bargaining (PCC... More
  • Following the Seventh Circuit’s landmark decision last April in Hively v. Ivy Tech Community College, the Second Circuit Court of Appeals has joined in finding that Title VII prohibits discrimination on the basis of sexual orientation. In Zarda v. Altitude Express, decided on February 26, 2018, the Second Circuit concluded that Title VII’s ban on sex discrimination “applies to any practice in which sex is a motivating factor.” Because sex is necessarily a factor in sexual orientation,... More
  • A U.S. district court recently held that federal law does not preempt the anti-discrimination provision in Connecticut’s medical marijuana law prohibiting employers from terminating or refusing to hire individuals based on their status as qualifying medical marijuana patients.  The ruling is important for Maine employers because of the similarities between Maine’s and Connecticut’s medical marijuana statutes.The plaintiff in the case, Noffsinger v. SSC Niantic Operating Co., LLC, had received a verbal offer of employment from a nursing facility, but was... More
  • Maine’s highest court recently weighed in on what it means to be a qualified individual with a disability under the Maine Human Rights Act.  Affirming a summary judgment in favor of the employer in Carnicella v. Mercy Hospital, the Law Court found that an employee who remained absent from work after exhausting her leave failed to demonstrate that she was a qualified individual with a disability where there was no dispute that she was unable to perform the essential functions... More
  • Most employment laws are like a one-way street, where the only party with the ability to drive a claim is the employee.  When it comes to electronic privacy, however, some federal statutes allow for two-way traffic.  Although the Stored Communications Act (SCA) and the Computer Fraud and Abuse Act (CFAA) are often used by employees to assert claims (like this and this) against employers over unauthorized access to electronic communications, these laws also provide avenues for employers to pursue claims... More
  • One of the fundamental protections of the National Labor Relations Act is that employers may not discipline employees for engaging in concerted activities relating to the terms and conditions of their employment.  Whether an employee has engaged in statutorily protected activity, however, is not always clear – especially when the activity involves profane or obscene conduct that would seem to cross the line in any other context.For example, the Second Circuit Court of Appeals just considered whether an employee lost... More
  • In a groundbreaking decision, the Seventh Circuit Court of Appeals ruled earlier this month that Title VII of the Civil Rights Act prohibits discrimination on the basis of sexual orientation. The Seventh Circuit’s decisionin Hively v. Ivy Tech Community College of Indiana is significant because it is the first decision by a federal appeals court to hold that sexual orientation discrimination is prohibited under Title VII.Hively v. Ivy Tech Community College of Indiana  The fundamental question at issue in Hively... More
  • The evolution of Maine wage payment laws continues apace, and a raft of legislative bills are currently undergoing scrutiny in Augusta.   Back in November, Maine voters increased the state minimum wage to $9 per hour and approved phasing-out the “tip credit” by increasing the minimum direct service wage for tipped employees to $5 per hour in 2017 and increasing it by an additional $1 per hour each year until it reaches the state minimum wage.   On Wednesday, April 5th, the... More
  • The situation is common enough: an employee is alleged to have engaged in misconduct and, as part of its investigation, the employer decides to search the employee’s company-issued computer for any relevant documents and communications.   One might expect that because the company owns the computer, anything discovered on the computer would be fair game.  That expectation, however, can sometimes lead employers astray – and straight into a claim under electronic privacy and anti-hacking statutes like the Stored Communications Act (SCA) and... More